El Ali v Beaini Enterprises Pty Ltd - [2023] NSWSC 329

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: El Ali v Beaini Enterprises Pty Ltd [2023] NSWSC 329
Hearing dates: 02 February 2023
Date of orders: 05 April 2023
Decision date: 05 April 2023
Jurisdiction: Common Law - Administrative Law
Before: Weinstein J
Decision:
(1) Leave to appeal pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 is refused.
(2) The Further Amended Summons filed on 2 February 2023 is dismissed.
(3) The first plaintiff is to pay the defendants’ costs.

Catchwords:
ADMINISTRATIVE LAW – judicial review - appeal from NCAT Appeal Panel – whether there was a denial of procedural fairness – whether there was an opportunity to be heard

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Corporations Act 2001 (Cth)
Residential Tenancies Act 2010 (NSW)

Cases Cited:
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Carolan v AMF Bowling Club Pty Ltd t/a Bennetts Green Bowl [1995] NSWCA 69
Coulton v Holcombe (1986) 162 CLR 1
Jaycar Pty Limited v Lombardo [2011] NSWCA 284
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1
John Maiolo t/a M&N Peninsular Kitchens & Joinery v Chiarelli [2017] NSWSC 982
Minister for Immigration and Border Protectionv SZMTA (2019) 264 CLR 421
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
Nathanson v Minister for Home Affairs (2022) 403 ALR 398
Soulis v R & A Henry Auto Repairs Pty Limited [2023] NSWCA 50
Star Training Academy Pty Ltd v Commissioner of Police (NSW) [2023] NSWSC 153
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
White City Tennis Club Ltd v John Alexander’s Clubs Pty Ltd (2009) 261 ALR 86

Category: Principal judgment
Parties: Alan El Ali (First Plaintiff)
Yates Holdings Victoria Pty Limited (Second Plaintiff)
Beaini Enterprises Pty Ltd (First Defendant)
Beaini Corp Pty Ltd (Second Defendant)
Representation:
Counsel:
First Plaintiff: G Farland and P Lin
Second Plaintiff: No appearance
First and Second Defendants: J Horowitz
Solicitors:
First and Second Defendants: Memcorp Lawyers

File Number(s): 2022/233077
Publication restriction: None
Decision under appeal

Court or tribunal:

NSW Civil and Administrative Tribunal

Jurisdiction:

Consumer and Commercial Division

Citation:

[2022] NSWCATAP 230

Date of Decision:

15 July 2022

Before:

D Charles, J McAteer

File Number(s):

2021/361561

JUDGMENT

This is an appeal from the NSW Civil and Administrative Tribunal (NCAT) Appeal Panel (the Appeal Panel) whose decision was published on 15 July 2022 and concerns an alleged denial of procedural fairness. The first plaintiff moves on a Further Amended Summons seeking Leave to Appeal which was filed in court without objection on 2 February 2023.
There are two named plaintiffs, both of whom were appellants in the Appeal Panel proceedings. The first plaintiff is Alan El Ali (Alan) and the second is Yates Holdings Victoria Pty Limited (Yates). Yates took no part in the proceedings before me. Indeed, neither did Yates take any active part in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 329
Decision Date: 05 April 2023

CaseChat Overview and Summary

In this case, the appellant, El Ali, appealed against the decision of the NCAT Appeal Panel, which dismissed his appeal against a decision of the NCAT. The dispute centred around the denial of procedural fairness and the opportunity to be heard. The appellant argued that he was not given a fair hearing, and his right to be heard was violated. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court had to decide included whether the appellant was denied procedural fairness and whether he was given an opportunity to be heard. The court had to consider whether the NCAT Appeal Panel's decision was flawed by procedural unfairness and whether the appellant's right to be heard was violated. The court had to examine the procedures followed by the NCAT Appeal Panel and determine whether they complied with the principles of procedural fairness.

The court held that the NCAT Appeal Panel's decision was not flawed by procedural unfairness. The court found that the appellant had been given a fair opportunity to present his case, and the NCAT Appeal Panel had considered all relevant evidence. The court held that the NCAT Appeal Panel had not breached the principles of procedural fairness and that the appellant's right to be heard had not been violated. The court dismissed the appeal.

The court's decision was based on a detailed analysis of the proceedings before the NCAT Appeal Panel. The court found that the NCAT Appeal Panel had followed the correct procedures and had given the appellant an opportunity to present his case. The court held that the NCAT Appeal Panel's decision was not flawed by procedural unfairness, and the appeal was dismissed. The final orders of the court were that the appellant pay the respondent's costs of the appeal.

Orders